G.R. No.

182677 August 3, 2010

JOSE ANTONIO C. LEVISTE
vs.
HON. ELMO M. ALAMEDA, HON. RAUL M. GONZALEZ,
HON. EMMANUEL Y. VELASCO, HEIRS OF THE LATE
RAFAEL DE LAS ALAS
Facts:
Jose Antonio C. Leviste (petitioner) was, by Information, charged
with homicide for the death of Rafael de las Alas on January 12,
2007 before the Regional Trial Court (RTC) of Makati City.
Petitioner was placed under police custody while confined at the
Makati Medical Center. After petitioner posted a bond which the
trial court approved,he was released from detention, and his
arraignment was set.
The private complainants-heirs of De las Alas filed, with the
conformity of the public prosecutor, an Urgent Omnibus Motion
praying, inter alia, for the deferment of the proceedings to allow the
public prosecutor to re-examine the evidence on record or to conduct
a reinvestigation to determine the proper offense.
Issue:
Whether or not in cases when an accused is arrested without a
warrant, the remedy of preliminary investigation belongs only to the
accused.
Held:
No. The Court holds that the private complainant can move for
reinvestigation.
All criminal actions commenced by a complaint or information shall
be prosecuted under the direction and control of the public
prosecutor The private complainant in a criminal case is merely a
witness and not a party to the case and cannot, by himself, ask for
the reinvestigation of the case after the information had been filed in
court, the proper party for that being the public prosecutor who has
the control of the prosecution of the case.Thus, in cases where the
private complainant is allowed to intervene by counsel in the
criminal action, and is granted the authority to prosecute, the private
complainant, by counsel and with the conformity of the public
prosecutor, can file a motion for reinvestigation.
In such an instance, before a re-investigation of the case may be
conducted by the public prosecutor, the permission or consent of the
court must be secured. If after such re-investigation the prosecution
finds a cogent basis to withdraw the information or otherwise cause
the dismissal of the case, such proposed course of action may be
taken but shall likewise be addressed to the sound discretion of the
court.
Once the trial court grants the prosecutions motion for
reinvestigation, the former is deemed to have deferred to the
authority of the prosecutorial arm of the Government. Having
brought the case back to the drawing board, the prosecution is thus
equipped with discretion wide and far reaching regarding the
disposition thereof, subject to the trial courts approval of the
resulting proposed course of action.
A preliminary investigation is required before the filing of a
complaint or information for an offense where the penalty prescribed

by law is at least four years, two months and one daywithout regard
to fine. As an exception, the rules provide that there is no need for a
preliminaryinvestigation in cases of a lawful arrest without a warrant
involving such type of offense, so longas an inquest, where
available, has been conducted.Inquest is defined as an informal and
summary investigation conducted by a public prosecutor incriminal
cases involving persons arrested and detained without the benefit of
a warrant of arrestissued by the court for the purpose of determining
whether said persons should remain under custody and
correspondingly be charged in court.The accelerated process of
inquest, owing to its summary nature and the attendant risk of
runningagainst Article 125, ends with either the prompt filing of an
information in court or theimmediate release of the arrested person.
Notably, the rules on inquest do not provide for amotion for
reconsideration.

METROBANK VS. REYNADO

627 SCRA 736
Facts:
On January 31, 1997, petitioner Metropolitan Bank and Trust
Company chargedrespondents before the Office of the City
Prosecutor of Manila with the crime of estafa againstReynado.
Aguirres affidavit, he said the special audit revealed fraudulent
transactions by the respondents in connivance Universal Converter
Philippines (their client). Through Bill PurchaseTransaction,
Universal, which has only Php125k in its balance, was able to
withdraw Php81 million again st Metropolitan Banks account.
Universals withdrawals were without the petitioners approval.
In their defense, respondents denied responsibility in the anomalous
transactions with Universaland claimed that they only intended to
help the Port Area branch solicit and increase its depositaccounts
and daily transactions.Following the requisite preliminary
investigation, Prosecutor Edad in her Resolution found petitioners
evidence insufficient to hold respondents liable for estafa and
dismissed thecomplaint accordingly. Petitioner appealed the
Resolution of Prosecutor Edad to the Departmentof Justice (DOJ) by
means of a Petition for Review, the DOJ dismissed the petition.
Aggrieved, petitioner went to the CA by filing a Petition for
Certiorari & Mandamus, the CA affirmed thetwin resolutions of the
Secretary of Justice.
Issue:
Whether the public prosecutor and the Secretary of Justice
committed grave abuse of discretion in disposing of the case of
petitioner, given the sufficiency of evidence on hand.
Held:
We rule in the affirmative.
In
a
preliminary
investigation,
a
public
prosecutor
determineswhether a crime has been committed and whether there is
probable cause that the accused isguilty thereof. Probable cause is
defined as such facts and circumstances that will engender awellfounded belief that a crime has been committed and that the
respondent is probably guiltythereof and should be held for trial.
Generally, a public prosecutor is afforded wide latitude of discretion
in the conduct of a preliminary investigation. By way of exception,
however, judicialreview is allowed where respondent has clearly
established that the prosecutor committed grave
abuse of discretion that is, when he has exercised his discretion in
an arbitrary, caprici

ous, whimsical or despotic manner by reason of passion or personal

hostility, patent and gross enoughas to amount to an evasion of a
positive duty or virtual refusal to perform a duty enjoined by law.
Tested against these guidelines, we find that this case falls under the
exception rather thanthe general rule. A close scrutiny of the
substance of Prosecutor Edads Resolution dated July 10, 1997
readily reveals that were it not for the Debt Settlement Agreement,
there was indeed probable cause toindict respondents for the crime
charged. From her own assessment of the Complaint-Affidavit of
petitioners auditor, her preliminary finding is that Ordinarily, the
offense of estafa has beensufficiently established. Interestingly, she
suddenly changed tack and declared that theagreement altered the
relation of the parties and that novation had set in preventing
theincipience of any criminal liability on respondents. In light of the
jurisprudence herein earlier discussed, the prosecutor should not
have gone that far and executed an apparent somersault.
Compounding further the error, the DOJ in dismissing petitioners
petition, ruled out estafa contrary to the findings of the prosecutor.
A compromise or settlement entered into after the commission of the
crime does not extinguish criminal liability for estafa. Thus, as long
as the essential elements of the crime of estafa are proven to have
existed, novation, compromise, payment or settlement of the
obligation in any other manner and at any stage (whether it is before
or after the filing of a case in court), will not affect the criminal
liability. It may reduce or extinguish only the civil liability of the
accused

VIUDEZ V CA
Petition for Review in the DOJ may suspend Arraignment but not
issuance of a Warrant of Arrest
The basic issue propounded by petitioner is whether a pending
resolution of a petition for review filed with the Secretary of Justice
concerning a finding of probable cause will suspend the proceedings
in the trial court, including the implementation of a warrant of arrest.
Petitioner cites DOJ Department Circular No. 70, specifically
paragraph 2 of Section 9 thereof, which provides that the appellant
and the trial prosecutor shall see to it that, pending resolution of the
appeal, the proceedings in court are held in abeyance. Somehow,
petitioner is of the opinion that the suspension of proceedings in
court, as provided in the said circular, includes the suspension of the
implementation of warrants of arrest issued by the court.

SUPREME COURT:
Petitioner's contention is wrong.
It is well to remember that there is a distinction between the
preliminary inquiry, which determines probable cause for the
issuance of a warrant of arrest; and the preliminary investigation
proper, which ascertains whether the offender should be held for trial
or be released. The determination of probable cause for purposes of
issuing a warrant of arrest is made by the judge. The preliminary
investigation proper whether or not there is reasonable ground to
believe that the accused is guilty of the offense charged is the
function of the investigating prosecutor.
As enunciated in Baltazar v. People, the task of the presiding judge
when the Information is filed with the court is first and foremost to
determine the existence or non-existence of probable cause for the

arrest of the accused. Probable cause is such set of facts and

circumstances as would lead a reasonably discreet and prudent man
to believe that the offense charged in the Information or any offense
included therein has been committed by the person sought to be
arrested. fellester.blogspot.com In determining probable cause, the
average man weighs the facts and circumstances without resorting to
the calibrations of the rules of evidence of which he has no technical
knowledge. He relies on common sense. A finding of probable cause
needs only to rest on evidence showing that, more likely than not, a
crime has been committed and that it was committed by the accused.
Probable cause demands more than suspicion; it requires less than
evidence that would justify conviction.
The purpose of the mandate of the judge to first determine probable
cause for the arrest of the accused is to insulate from the very start
those falsely charged with crimes from the tribulations, expenses and
anxiety of a public trial.
The function of the judge to issue a warrant of arrest upon the
determination of probable cause is exclusive; thus, the consequent
implementation of a warrant of arrest cannot be deferred pending the
resolution of a petition for review by the Secretary of Justice as to
the finding of probable cause, a function that is executive in nature.
To defer the implementation of the warrant of arrest would be an
encroachment on the exclusive prerogative of the judge. It must be
emphasized that petitioner filed with the trial court a motion to
suspend proceedings and to suspend the implementation of the
warrant of arrest in pursuance of a DOJ circular, and not a motion to
quash the warrant of arrest questioning the issuance thereof.
Thus, there is no contest as to the validity or regularity of the
issuance of the warrant of arrest.
Petitioner merely wanted the trial court to defer the implementation
of the warrant of arrest pending the resolution by the Secretary of
Justice of the petition for review that he filed citing the following
directive contained in Section 9 of DOJ Department Circular:
xxxx
The appellant and the trial prosecutor shall see to it that, pending
resolution of the appeal, the proceedings in court are held in
abeyance.

The above provision of the Department Circular is directed

specifically at the appellant and the trial prosecutor, giving them
latitude in choosing a remedy to ensure that the proceedings in court
are held in abeyance. However, nowhere in the said provision does it
state that the court must hold the proceedings in abeyance.
Therefore, the discretion of the court whether or not to suspend the
proceedings or the implementation of the warrant of arrest, upon the
motion of the appellant or the trial prosecutor, remains unhindered.
Petitioner has put emphasis on his argument that the suspension of
the proceedings in court, including the suspension of the
implementation of a warrant of arrest pending a resolution of an
appeal by the Secretary of Justice, is in consonance with
jurisprudence laid down by this Court in Marcelo v. Court of
Appeals, Roberts, Jr. v. Court of Appeals, Ledesma v. Court of
Appeals, Dimatulac v. Villon, and Solar Team Entertainment, Inc. v.
How.
A close reading of the factual antecedents in Ledesma, Solar Team
Entertainment, Inc., Dimatulac and Marcelo clearly show that a
common issue among them is whether the arraignment of an accused
may be deferred pending resolution by the Secretary of Justice of a

petition for review on the finding of probable cause, to which this

Court ruled in the affirmative. Nowhere in the said decisions did it
state that the implementation or enforcement of the warrant of arrest
was also deferred or suspended, as herein petitioner prays for.
(Viudez vs. CA, G.R. No. 152889, June 5, 2009)

On July 28, 2005 CA ruled in favor of the respondents, granting the

petition of the respondents. That the regional state prosecutor
committed grave abuse of discretion when he directed the filing of
the information for perjury on the reason of no counter-affidavits
were submitted by respondents. Verzano petitioned for a motion for
reconsideration but was denied by CA.

G.R. NO. 171643, AUGUST 8, 2010

FILEMON VERZANO,JR., PETITIONER
VS FRANCIS PARO, ET.AL., RESPONDENTS

Issues: (1) petition filed by respondents with CA had been rendered

moot and academic by the filing of the cases in court. (2) regional
state prosecutor did not commit grave abuse of discretion in
reversing the resolution of the city prosecutor. (3) petition for
certiorari filed by herein private respondents with the CA is not the
proper remedy.

Facts:
On March 2002, Verzano former district manager of Wyeth
Philippines, Inc. for the islands of Panay and Negros was dismissed
from service upon administrative complaint filed against him.
The complaint was founded on petitioner's alleged violation of
company policy on prohibited sale of drug samples given for free to
doctors and for the unauthorized act of transferring of the stocks
within the same area falsely creating an impression that there was a
sale. After conducting its own investigation and giving petitioner an
opportunity to explain his side, wyeth resolved to dismiss petitioner
tendering him a Notice of Termination.
Aggrieved, Verzano filed a complaint for illegal dismissal with
Regional Labor Arbitration Board, NLRC, Bacolod City against
Wyeth. Attached were the affidavits of respondents Paro and
Florencio alleging that the respondents' testimony are false and
incriminatory machination. The affidavits of the respondents
contained falsehood particularly on the material date of the alleged
sale of products which are to be given free to doctors.
Subpoenas were issued by the City Prosecutor against respondents
for the submission of their respective counter-affidavits; however,
the return of the subpoenas showed that respondents could not be
located at their given addresses.In a resolution, the city prosecutors
resolved to dismiss Verzano's complaint finding no probable cause
and insufficiency of evidence.
Verzano filed a motion for reconsideration, which was denied by the
city prosecutor in a resolution. Verzano appealed the resolution oof
the city prosecutor to the office of regional state prosecutor via
petition for review, but regional state prosecutor finding merit in
Verzano's petition reversed and directed the prosecutor's office to file
information for perjury against Paro, Florencio.
Aggrieved, the respondents filed a motion for reconsideration which
was denied by the Regional State Prosecutor.
On September 2004 respondents filed a petition for certiorari before
the CA assailing the resolutions of the regional state prosecutor
which reversed the earlier resolution of the city prosecutor and
prayed for a TRO from CA.
On October 2004, MTC issued warrants of arrest against
respondents, Florencio posted bail and Paro followed suit on
Ocotber 8, 2004.
On October 14, 2004 a TRO was issued by CA enjoining the public
respondent chief prosecutor from acting on the assailed order issued
by the regional state prosecutor for a period of 60 days from receipt.
In light of the TRO, respondents filed with MTCC a manifestation
and urgent motion to suspend proceedings which was granted by the
MTCC.

Ruling: Petition has no merit.

(1) The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case as its
dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even while
the case is already in Court he cannot impose his opinion on the trial
court. The Court is the best and sole judge on what to do with the
case before it. The determination of the case is within its exclusive
jurisdiction and competence. A motion to dismiss the case filed by
the fiscal should be addressed to the Court who has the option to
grant or deny the same. It does not matter if this is done before or
after the arraignment of the accused or that the motion was filed
after a reinvestigation or upon instructions of the Secretary of Justice
who reviewed the records of the investigation. (2) The justice
secretary's power of review may still be availed of despite the filing
of an information in court. The case record will show that your
Office, in the determination of probable cause vis--vis the attending
set of facts and circumstances, failed to consider the application of
the procedure laid down under Section 3 paragraph (d) of Rule 112
of the Revised Rules of Procedure which provides:
If the respondent cannot be subpoenaed, or if subpoenaed, does not
submit counter-affidavits within the ten (10)-day period, the
investigating officer shall resolve the complaint based on the
evidence presented by the complainant.In the instant case, the
Investigating Prosecutor found ground to continue with the inquiry
which is why he issued subpoenas to the respondents to submit their
counter affidavit within the 10-day period, since he could have
dismissed it initially if indeed there was really no evidence to serve
as a ground for continuing with the inquiry. For failure of the
respondents to file their respective counter-affidavits, they are
deemed to have forfeited their right to preliminary investigation as
due process only requires that the respondent be given the
opportunity to submit counter-affidavit, if he is so minded. The
conclusion reached by the Regional State Prosecutor is manifestly
wrong as the CA was correct when it observed that the issuance of a
subpoena would become unceremoniously clothed with the
untoward implication that probable cause is necessarily extant.(3)
CA found that the Regional State Prosecutor acted with grave abuse
of discretion when he ordered the City Prosecutor to file the
Informations for perjury against respondents. It was because of the
CA Decision that the City Prosecutor eventually filed two Motions
for Leave to Withdraw Informations. The court may deny or grant a
motion to withdraw an information, not out of subservience to the
(Special) Prosecutor, but in faithful exercise of judicial discretion
and prerogative. The dismissal of the two informations against
respondents were subject to the MTCCs jurisdiction and discretion
in view of the circumstances of the case at bar. Such dismissal
ultimately renders the case moot and academic.